Enter your email to subscribe:

Appearances are not merely a matter of aesthetics, but also of law and politics. That's the argument of Deborah Rhode in The Injustice of Appearance, 61 Stanford Law Review 1033 (2009).

After documenting the emphasis on attractiveness, including matters of weight, Rhode tackles the legal arguments. She states that the "clearest argument for banning discrimination based on appearance is that it offends principles of equal opportunity and individual dignity." Id. at 1048. Additionally, another

reason for prohibiting discrimination based on appearance is that it reinforces group disadvantages. As constitutional scholars including Cass Sunstein and J.M. Balkin have argued, practices that systematically stigmatize and subordinate groups prevent members from developing their full capacities. The perpetuation of hierarchies also jeopardizes perceptions of fairness and legitimacy on which well-functioning democracies depend. Like many other forms of discrimination, prejudice based on appearance compounds the disadvantages of already disadvantaged groups, particularly those based on class, gender, race, ethnicity, disability, and sexual orientation.

Id. at 1052. Her third and final rationale supporting the argument for prohibiting appearance discrimination is "that it restricts individuals’ right to self-expression." Id. at 1058. One of her arguments refuting criticisms is that there is an

assumption that prejudice based on appearance is more natural and harder to eradicate than other forms of bias. In fact, considerable evidence suggests that in-group favoritism—the preferences that individuals feel for those who are like them in salient respects, such as race, sex, and ethnicity—are also deeply rooted. Plessy v. Ferguson, the shameful 1896 Supreme Court decision that affirmed “separate but equal” racial policies, was built on the assumption that segregation was a natural desire. Yet that desire has proven open to change, partly through legal interventions. A half-century ago, a majority of Americans surveyed thought that the Supreme Court’s ruling in Brown v. Board of Education prohibiting school segregation had “caused a lot more trouble than it was worth.” Today, only 11% share that view and the ruling is widely regarded as one of the Court’s finest moments.

Id. at 1069-1070 (citations omitted). Rhode's point is that law can affect societal change (and she provides other examples). She is not arguing that appearance should be a suspect or even quasi-suspect classification for equal protection purposes. However, she does provide a concluding section on "Directions for Reform," including a research agenda and calls for activism, including state and local action.

I first saw a mention of this article on Feminist Law Professors in an entry from Ann Bartow. Thanks to Ann, I've read an engaging thought-provoking piece. And it might even be the basis of a Constitutional Law hypothetical in next week's class.